Analysis The Federal Communications Commission (FCC) put the final nail into America's net neutrality coffin on Tuesday, approving an order that ties up loose ends from its 2018 decision to “restore internet freedom."
Yet in a week’s time, the United States will have an election that could well lead to the order being overturned for a third time, thanks to the issue of internet access being turned into a partisan political topic by the cable industry.
Today's order came about after an appeals court asked the commission a year ago to look at three specific issues arising from the regulator's "internet freedom" decision, which reclassified broadband internet as an “information service” from its previous "common carrier" classification.
The court asked the FCC to look at the impact of that decision on public safety, pole attachment regulations, and the inclusion of broadband in the FCC’s Lifeline program. And to absolutely no one’s surprise, after what everyone is pretending was a year’s worth of deliberation, the FCC Republican majority decided that everything was fine, and there is no need to vary that 2018 "internet freedom" order, which ultimately killed off net neutrality protections in the US.
With that foregone conclusion out the way, the FCC Commissioners, network neutrality advocates, and the cable industry welcomed the opportunity to start shouting at and mocking one another all over again.
Seconds after the commissioners voted to approve the order on remand, as expected, the FCC posted its official announcement which included the completely unnecessary and dubious assertion that its 2018 order had ended “heavy-handed utility-style regulation of the Internet under rules designed in the 1930s for the Ma Bell telephone monopoly” and had “restored the light-touch regulatory framework under which a free and open internet rapidly developed and flourished for almost two decades.”
Here comes the anger
That announcement sparked immediate, pre-written responses for others. As usual, the pro-net neutrality group Fight for the Future managed to froth at the mouth, attacking the FCC boss personally: “Ajit Pai’s corruption and cruelty know no limits,” began the rant/statement.
“We’re in the middle of a deadly pandemic where people are more vulnerable to Big Telecom’s abuses than ever before, and the FCC is voting against Internet freedom once again. They’re ignoring a mountain of evidence and the voices of the overwhelming majority of people from across the political spectrum.”
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Wait, though, there’s more: “And they’re spitting in the face of our nation’s medical professionals and first responders by specifically ignoring a court order to address the serious public safety issues surrounding their repeal of net neutrality.”
There was less face-spitting on the other side though no less disdain. FreedomWorks repeated the line that the order “reaffirms the successful light touch regulatory framework that allowed the internet to grow and thrive,” but couldn’t resist putting the boot in.
“We are also proud that FreedomWorks activists submitted nearly 3,000 comments to the FCC to counter the opportunists who wanted to use this chance for clarification to repeal the Restoring Internet Freedom Order altogether. Our grassroots activists across the country recognize the importance of reduced regulation and increased investment for their lives.”
It seems churlish to point out that the campaign both for and against the order was a low point in what has been a particularly unedifying debate over the future of internet provision in America.
The comment period in particular was an embarrassment, with groups stealing the identities of real people – some alive, some dead – to flood the servers with pre-written messages; something that the FCC was sadly complicit in because muddied waters helped it avoid the reality which is that a clear majority of Americans were opposed to the decision to scrap the net neutrality rules.
And now the chiefs
The FCC’s Commissioners were equally combative.
Ajit Pai opened up with confident nonsense proposed as a statement of fact. “As a matter of law, economic, and public policy,” he began, “this decision was undoubtedly correct.” Despite having “won,” Pai acknowledged that it may all have been for nothing because it can be overruled again by a Democratic-led FCC in January, just as he overruled the previous administration.
But, of course, far from reflecting on the truth of the matter – that policy forced through is bad policy that will inevitably fall or fail – Pai was tediously defiant. “This order would ideally provide certainty and finality to this matter [but] the truth is some will always seek to return to the broken Title II regime, including its misguided approach to paid prioritization…” And so on.
Commissioners Crabbe and Goyle – sorry, Carr and O’Reilly – offered similar pronouncements. Carr claimed that the fact that internet networks were able to handle the jump in traffic caused by the current pandemic was evidence that the order was working. And then claimed conspiratorially that “the fight over net neutrality has never really been about net neutrality. That is the sheep’s clothing. It has always been about rate regulation. A surefire way to kill innovation and scare off investment.”
Well, it wouldn’t be 2020 without a conspiracy theory and some vague waving at a dire threat posed by anyone that doesn’t agree with you. Let’s just ignore O’Reilly because he’s out as a commissioner soon.
The next chair?
Which leads to Commissioner Jessica Rosenworcel, who will likely become the next FCC chair if Joe Biden is chosen as president.
“I support net neutrality,” she began. “I believe the FCC got it wrong when three years ago it gave the green light to our nation’s broadband providers to block websites, throttle services, and censor online content.” She didn’t reflect on the fact that none of that has really happened as yet, however, beyond the usually throttling when you hit download limits.
She went on: “I believe this decision put the agency on the wrong side of the public and the wrong side of history, and the wrong side of the law.” She then started bandying around some unhelpful words about the current commissioners’ decision – crazy, bananas, absurd, and so on.
With respect to today’s order she accused the FCC of “not being interested in getting it right. Instead, it doubles down,” which is a fair criticism.
She also criticized Pai for “lacking the humility to admit our mistake.” But then neither this order, nor the previous order, actually work – both are kludges. Rather than work to fix it, however, the two sides spent the whole time fighting to the death over their flawed solutions.
But if anyone was hoping that maybe the lesson that the FCC will learn from this decade-long net neutrality debacle was that it needs to carve out a new solution, Rosenworcel wasn’t going to give it.
“We can revisit matters anew,” she said at the end of her speech. “Let’s not stop here and now. Let’s fight. Let’s make it happen. I believe we can and I believe we should, because our future depends on it.”
As for the other Democrat, Commissioner Starks, he also voted against the order, and complained that the FCC has “lost any authority to protect vulnerable consumers and public safety organizations who broadband connections may be a risk.”
And he pointed to the obvious hypocrisy in the FCC’s decision to somehow take on Section 230 when it claimed that the reason to get rid of net neutrality was to have a “light touch regulatory framework.”
And the rest
As for the rest of the October FCC monthly meeting, the regulator pushed two things aimed at getting broadband to rural communities: setting up a “5G Fund” and increasing the ability to run wireless operations in TV whitespaces.
Both will help dent the lack of fast internet that the US suffers outside large cities and suburbs, but the truth remains that the main reason America continues to live with terrible internet access at high prices is that broadband provision is largely controlled by an oligopoly of huge cable companies for whom rural internet is not a priority.
The difference between a Republican FCC and a Democratic FCC is that the former will do all it can to persuade people that maintaining the status quo is the right thing to do, and the latter will pressure telcos to change by threatening their profits. We’ll get to see which one has control of telco policy for the next four years soon. ®